Republican Senate candidate Dave McCormick filed a lawsuit Monday in a bid to ensure certain mail-in ballots aren't disqualified from last week's Pennsylvania primary, in which his fight against Mehmet Oz remains too close to call.
McCormick, in papers filed in the Commonwealth Court of Pennsylvania, said a number of county boards of election are refusing to count ballots that arrived in time for the primary but were missing handwritten dates on the envelopes.
"These ballots were indisputably submitted on time—they were date-stamped upon receipt—and no fraud or irregularity has been alleged," the suit says, adding that boards are refusing to count them because of the technicality.
While state law says voters using absentee ballots have to "fill out, date and sign" the exterior mailing envelopes, the suit notes that the state Supreme Court has previously ruled in favor of counting such ballots and that a federal appeals court ruled Friday in a different state race that rejecting ballots on a slight technicality is against federal law.
"Both the Pennsylvania Supreme Court and the United States Court of Appeals for the Third Circuit have held that mail-in ballots should not be disqualified simply because the voters failed to hand write a date on the exterior mailing envelope of their ballots. Because all ballots are time stamped by the County Boards of Elections on receipt, a voter’s handwritten date is meaningless," Chuck Cooper, McCormick's chief legal counsel, said in a statement.
It's unclear how many ballots would be affected. McCormick has been faring better in mail-in voting than Oz, a celebrity TV doctor endorsed by former President Donald Trump, an outspoken vote-by-mail critic.
The latest NBC News election results show Oz leading McCormick, a former hedge fund manager, by less than 1,000 votes.
Asked for a response to McCormick's legal action, which was first reported by the Washington Examiner, Oz's campaign pointed to a statement from Saturday, when it said McCormick's legal team appeared to be "following the Democrats' playbook."
"Dr. Mehmet Oz continues to respectfully allow Pennsylvania’s vote-counting process to take place and puts his faith in the Republican voters who we believe have chosen him as their nominee. That is why our campaign will oppose the McCormick legal team’s request that election boards ignore both Pennsylvania’s Supreme Court and state election law and accept legally rejected ballots," said Oz's campaign manager, Casey Contres.
McCormick campaign spokeswoman Jess Szymanski said Monday: “Every Republican primary vote should be counted, including the votes of Pennsylvania’s active-duty military members who risk their lives to defend our constitutional right to vote. When every Republican vote is counted, Dave looks forward to uniting the party and defeating socialist John Fetterman in the fall.”
Fetterman, the state's lieutenant governor, won the Democratic primary with more than 58 percent of the vote.
In a statement Monday night, the Republican Party of Pennsylvania also weighed in on the mail-in ballot debate and sided with Oz.
“While the Republican Party of Pennsylvania looks forward to supporting the Pennsylvania Republican U.S. Senate nominee, whoever it may be, we absolutely object to the counting of undated mail-in ballots,” the party said in a statement. “Pennsylvania law and...our courts have been very clear that undated ballots are not to be counted. We have worked hard towards restoring confidence in our elections, and we call upon everyone to respect, uphold and follow the clear law on this issue.”
The winner of the McCormick-Oz contest might not be known for weeks. Pennsylvania law requires an automatic recount if the margin of victory is within a half-percentage point. As of Monday, they were separated by 0.01 percentage point.